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A federal court case regarding a $900 fine against a company for omitting an injury from its OSHA 300 log has resulted in sharp criticism of OSHA’s recordkeeping standard. See if you agree with the court:
First, the background on the case.
It involves Caterpillar Logistics Services which sells parts for tractors, earth-moving machines and other products. An employee, “MK,” worked in the packing department. Packing department workers took parts from totes that usually weighed ten pounds or less but occasionally weighed up to 50 pounds and put them in shipping containers. On a normal day, each employee filled 12 to 14 shipping containers from about 650 totes.
About five weeks after starting work, MK felt pain in her right elbow. After another five weeks, MK visited the company clinic. The staff doctor said MK had medial and lateral epicondylitis: painful swelling of the ligaments and tendons around her elbow. Medial is commonly known as golfer’s elbow; lateral is tennis elbow.
MK didn’t work for the next three months. While she was off work, she was diagnosed with epicondylitis in her left arm, too. However, in the time she was off work, her condition improved. When she returned to work in the packing department, the improvement stopped. She was transferred to another position, and she recovered from the golfer’s and tennis elbow.
Caterpillar had to decide whether to list MK’s injury on its OSHA 300 log. The National Institute for Occupational Safety and Health and the American Medical Association both say repetitive motion plus force can cause epicondylitis, but repetitive motion alone can’t. For that reason, the staff physician concluded that the injury couldn’t be work-related because the necessary force wasn’t present in MK’s job.
Just to make sure it was doing the right thing, Caterpillar gathered an internal review panel of five members, three of whom were board-certified in musculoskeletal disorders. They agreed with the doctor’s decision.
OSHA fined the company $900 for failing to log a work-related injury. On appeal, an administrative law judge (ALJ) agreed with OSHA. The full Occupational Safety and Health Review Commission (OSHRC) declined to review the ALJ’s decision.
The physician who testified on OSHA’s behalf said the combination of moderate repetition plus rotational movement of the forearm must have caused MK’s condition. However, there was no explanation on why no other Caterpillar workers suffered from epicondylitis. The packing department had been running the same way for 10 years with 30 employees, for 300 person-years of experience.
When the 7th Circuit court took up this case, it said the big consideration missing from the ALJ’s opinion was Caterpillar’s 300 person-years of experience in its packing department. Experts say epicondylitis affects about 1% to 2% of the general population. At that rate, Caterpillar should have had three to six cases among its staff, yet it only had one, the court noted. And if conditions in the packing department contributed to epicondylitis, the injury would have occurred more often than average among the workers.
What does ‘contributed to’ mean?
This is where the court’s opinion on OSHA’s recordkeeping standard comes in.
The 7th Circuit notes OSHA defines a death, illness or injury as work-related if “the work environment either caused or contributed to the resulting condition.” According to the court, neither the regulation nor any decisions from the U.S. Department of Labor define what is meant by “contributed to.” That could mean “increase the probability, above background levels [or] by a statistically significant amount.”
“What is certain is that the agency must choose among these possibilities,” the court wrote. In other words, it wants a clarification of “contributed to” in OSHA’s definition of a work-related injury.
So, in the Caterpillar case, it’s not possible to tell whether the company’s experience with a lack of reports of epicondylitis among its packing department staff is significant or not, according to the court, because of the lack of definition of “contributed to.”
And regarding OSHA’s recordkeeping standard, the court had this to say:
“What the work-relatedness requirement is doing in [the standard] is a puzzle. The Secretary [of Labor] suggested that the injury log’s function is to help the Department determine which occupations are hazardous, so that it can concentrate enforcement resources on them and propose regulatory changes that may reduce risks to employees. These purposes can be served, however, only if the log contains all injuries. Then the Department can compare rates of injury in a given job with the background rate in the general population … The Secretary can get no more information out than the employer puts in: GIGO (garbage in, garbage out) … An elaborate board of inquiry at Caterpillar was followed by the Department’s investigation, a four-day trial, an opinion by an ALJ, submissions to the Commission, and then briefs and arguments in a court of appeals. Because saving all of this time and expense might simultaneously improve the log’s usefulness, the Secretary may want to take another look at 1904.4(a) (the recordkeeping standard).”
The 7th Circuit threw out OSHA’s fine and remanded the case “for proceedings consistent with this opinion.”
So it seems now a definition of “contributed to” for work-related injuries will result from this case.
What do you think about the court’s opinion? Do you agree that the language in OSHA’s standard is vague when it comes to determining what is and isn’t a workplace injury? Would you welcome a definition of “contributed to,” or do you think that just might make things worse when it comes to filling out your OSHA injury logs? Let us know what you think in the comments below.
(Caterpillar Logistics Services Inc. v. Solis, United States Court of Appeals, 7th Circuit, No. 11-2958, 3/20/12)